Paulus, Opinions, Book IX. Where a guardian makes a demand in the name of his wards for what is due to them, the debtor cannot ask that his debt be set-off against one that the guardian himself owes him.

The Same, Opinions, Book IX. Where anyone alleges that his adversary is deprived of some right by a particular law or constitution, he must prove it. 1Paulus also holds that where anyone denies that emancipation has been legally accomplished, he must furnish proof of his statement.

Paulus, Opinions, Book IX. I ask whether anyone can appoint as testamentary guardians citizens who do not reside in the same town as the ward. Paulus answered that he can do so. 1Paulus also gives it as his opinion that a man who has been appointed guardian on account of his knowledge of certain matters, can legally be sued with reference to everything pertaining to the administration of the office, just as other guardians appointed by the same will. 2Lucius Titius appointed his minor children his heirs, and appointed guardians for them in the following words: “Gaius Mævius and Lucius Eros shall be the guardians of my children”. But he did not bequeath his freedom to Eros, who was a slave. The latter, however, was under the age of twenty-five years, and I ask whether he could claim his freedom. Paulus gave it as his opinion, that as it had been decided that a slave who was appointed a guardian by his master is considered to have deserved his freedom, he also, with respect to whom the inquiry is made, should be considered to be in the same position, and therefore should be free as soon as the estate was entered upon, and should be entitled to the guardianship when he attained lawful age.

Paulus, Opinions, Book IX. The Divine Marcus and Verus to Cornelius Proculus: “Whenever suitable persons to be appointed guardians cannot be found in the city of which the minors are natives, it shall be the duty of the magistrates to make inquiry in the neighboring towns for persons of excellent reputation, and send their names to the Governor of the province, but they cannot themselves claim the right to appoint them.”

The Same, Opinions, Book IX. Lucius Titius, the curator of Gaius Seius, during the time of his curatorship, leased the Cornelian Estate to Sempronius, who failed to pay the rent. The minor, having attained his majority, appointed the former lessee, Sempronius, his agent. I ask if because he acted as agent the minor is considered to have assumed the entire debt, and therefore released his curator. Paulus answered that, for the reason that the party, after having attained his majority, desired to have his former tenant act as his agent, he should not be considered to have released him from liability for the balance due on his rent. 1The State, by order to the Governor, took possession of the property of Sempronius, who, on account of a promise, had become a debtor of his native city and the magistrates of the latter appointed three curators, who are called by the Greeks epimelytai, and who afterwards on their own responsibility, and without the consent of the municipality, divided among themselves the administration of the property of Sempronius. One of them became insolvent, and the others who were solvent, relinquished the administration of the trust at the same time. Afterwards, the heir of Sempronius, who was a minor, and who had rejected the estate, obtained from the Emperor the restitution of his father’s property. I ask whether the minor should be indemnified out of the property of the curators who were solvent, since individual responsibility for the curatorship had been imposed upon them by the magistrates. Paulus answered that if it should be decided that an action might be granted the ward against the curators, he must sue the magistrates for the share of the curator who was not solvent, as the administration of guardians is one thing, and that of those who have charge of the business of the government is another. 2Ad Dig. 26,7,46,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 439, Note 10; Bd. II, § 442, Note 2.A guardian who has lent the money of his ward, even though he does so in his own name, is not held to have acted in opposition to the constitutions which forbid the money of a ward to be converted to the use of a guardian. 3The question arose whether a guardian should be compelled to pay interest on the money of his ward, which he had used after the termination of his guardianship until the day judgment was rendered against him. Paulus answered that after his administration was at an end, the interest should be computed in the same way as in a judgment on guardianship. 4Paulus also gave it as his opinion that where a surety was given by a guardian for the preservation of the property of his ward, he would not be liable for any acts performed by the guardian after the ward arrived at puberty, which were not due to necessity, but to choice. 5A guardian having been sued in an action on guardianship, produced his account, and judgment being rendered against him, he made payment in accordance with its terms; and afterwards, when the ward desired to collect money due from certain debtors of his father, whose names did not appear in the book of accounts, receipts of the guardian were produced by the said debtors. The question arose whether an action would lie in his favor against the guardian, or against the debtors. Paulus answered that if the debtors had paid the guardian during the time he was administering the trust, they would be released from liability to the ward by operation of law; but if an action was brought against the guardian, the ward could also bring one on guardianship against him, and avail himself of a reply on the ground of fraud, in opposition to an exception based upon a previous decision of the case. 6Where two testamentary guardians were appointed for a ward, and one of them died, upon the application of the mother of the ward another was appointed in his stead by the magistrates, under the direction of the Governor of the province, and from the latter guardian the magistrate exacted security for the preservation of the estate. The testamentary guardian denounced the other, subsequently appointed, as being suspicious. The question then arose as to what extent he could be held liable. Paulus answered that the testamentary guardian should be sued for the share of the property which he had administered; and that, with reference to the share of his fellow-guardian, proceedings should first be instituted against those who had become his sureties, and afterwards against the magistrates who appointed him. Then, if the ward was unable to obtain all to which he was entitled, an investigation should be made of the conduct of the other guardian, for the purpose of ascertaining whether he should be declared suspicious, especially as he was said to have accused the second guardian of acting suspiciously. Under other circumstances, however, where magistrates appoint several guardians, a ward has no recourse against them, before the property of all the guardians has been exhausted. In the case stated, where one guardian has been appointed by the magistrates, it is not held to be advisable that the testamentary guardian who accused the other of being suspicious should be sued before his colleague; hence each should be considered as having been appointed guardian for the administration of half the estate. 7Guardians are permitted to collect money due from the debtors of their wards, in order that they may be legally discharged; but they cannot present them with their claims, nor make any arrangement with them for the purpose of diminishing them. Therefore, where a debtor pays a smaller sum to a guardian than is due, he can be sued by the ward for the balance.

The Same, Opinions, Book IX. A curator can even be appointed for anyone under the age of puberty, but a guardian is required for the settlement of all matters which involve the formalities of law.

The Same, Opinions, Book IX. Parents are accustomed to select their dearest and truest friends as guardians for their children, and for this reason they bestow legacies upon them, in order to induce them to assume the burden of guardianship. But where such a person has obtained a legacy by will, and has also been substituted for the ward, it is not probable that the testator intended him to be substituted, if he should undertake the guardianship, and therefore the party in question should be deprived of the legacy if the ward is living; but he cannot be excluded from the substitution, as, in this instance, even if the guardianship is undertaken it would be terminated. 1Lucius Titius, out of three sons, had one who was emancipated and of an age to entitle him to have a curator. I ask whether the said Titius, when the said emancipated son petitioned for his father to be appointed his curator by the Prætor, can have recourse to the public law, and demand exemption on account of his three sons. I answered that this privilege cannot be denied the father, for the reason that he is entitled to it on account of the number of his children; but that when he is asked to be the curator of his son, he will act contrary to the instincts of nature, if he should attempt to make use of an excuse of this description.

The Same, Opinions, Book IX. Where the heir of a guardian has been sued in an action on guardianship, his curator is not held to be released by operation of law, nor will an exception be granted him on the ground of res judicata. The same rule shall be observed with reference to the heirs of magistrates.

Paulus, Opinions, Book IX. The heirs of a person who was not regularly appointed a guardian or a curator, and did not undertake the administration of the trust, shall be liable for neither bad faith nor negligence. 1Paulus is of the opinion that an action of this kind should be brought against the heir of a guardian, just as the deceased would have been subjected to it. This is applicable to the extent that the heir will not be excused if he alleges that he had not found the documents relating to the guardianship; for as the heir in all bona fide actions is liable for the bad faith of the deceased, I think that the same rule should be observed in an action on guardianship. Relief, however, is granted by the Imperial Constitutions on account of the ignorance of heirs. This rule must also be observed when an heir is sued after the death of the guardian, but not where he died after issue had been joined; for by joinder of issue penal actions are transmitted for and against the heirs of both parties, and rights of action ordinarily extinguished by time are perpetuated.

The Same, Opinions, Book IX. Paulus gave it as his opinion that even though the will of a father should subsequently be held to be void, still, the guardians or curators of his son were considered to have committed no act against the Decree of the Divine Emperors, where in accordance with the desire of the deceased expressed in his will, land belonging to the ward which was situated in the country.